COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71826 CITY OF BEDFORD HEIGHTS : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION WAYNE NIEMINEN : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 20, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Bedford Municipal Court : Case No. 96 TRC 02655 A JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: DAVID J. FINNERTY Attorney at Law 6553 Brecksville Road Independence, Ohio 44131 JAMES L. OAKAR Attorney at Law 700 West St. Clair Avenue, #210 Cleveland, Ohio 44113 (Cont.) APPEARANCES: (Continued) For defendant-appellant: KENNETH A. BOSSIN Attorney at Law 2 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1701 MARK GARDNER Attorney at Law 1260 Quilliams Road Cleveland Heights, Ohio 44118 3 TIMOTHY McMONAGLE, J.: Defendant-appellant, Wayne Nieminen ( appellant ), appeals the judgment of the Bedford Municipal Court convicting him of driving under the influence of alcohol and/or drugs. For the reasons that follow, we affirm. The record reflects that during the early morning hours of April 18, 1996, appellant was observed by Bedford Heights Police Officer Michael McKay staggering across the parking lot of the Proud Pony, a local eating and drinking establishment, with his car keys in hand as if he were headed toward his vehicle. Upon seeing this, Ofc. McKay approached appellant and, after smelling the odor of alcohol on his breath and observing his glassy, red eyes, asked him if he was okay to drive. Appellant, with slurred and mumbled speech, responded that he was not okay to drive, whereupon the officer advised appellant to return to the Proud Pony to make arrangements for someone to drive him home. As the officer testified, appellant thanked him and returned to the Proud Pony, ostensibly following the officer's advice. Ofc. McKay continued to patrol the area and, subsequent to these events, observed appellant again exit the Proud Pony. Before the officer could reach appellant, however, appellant entered his car and drove off. At this point, Ofc. McKay observed appellant's vehicle swerve and almost hit the right-curb lane. He activated his overhead emergency lights and eventually stopped appellant. Upon confronting appellant, appellant rather propitiously stated to 4 the officer that the officer was only doing his job and that he was right in stopping appellant. After failing to adequately perform several field sobriety tests, appellant was arrested for, inter alia,1 driving under the influence of alcohol. Once at the police station for processing, Corrections Officer Leonard Piazza testified that appellant appeared intoxicated, and when asked to submit to a breath alcohol test, appellant refused. Another corrections officer, Paul Bavrek, likewise testified that appellant appeared intoxicated. At the jury trial that followed, appellant presented the testimony of Proud Pony employees Carmen DiTurno and Nancy Jellison, who both testified that they observed appellant during the hours while he was at the Proud Pony and that appellant did not appear intoxicated. Despite this testimony, Ms. Jellison testified that she was concerned about appellant and offered him a ride to his hotel. Appellant ultimately refused this offer because he apparently did not want to leave his brand new 1996 collector's edition Corvette in the Proud Pony parking lot. Also testifying for the defense was Christopher Giannini, a police academy instructor. Appellant attempted to have Mr. Giannini testify as an expert witness regarding the proper procedure for conducting field sobriety tests. The trial court sustained the city's objections to the admission of most of this testimony. Lastly, appellant testified in his own defense. He denied encountering Ofc. McKay in 1It appears from the parties' briefs that appellant was likewise cited for weaving and assigned a separate case number for that offense. 5 the parking lot prior to being stopped and further testified that he refused to take the breath test unless he had an attorney. The jury ultimately found appellant guilty of driving while under the influence.2 Appellant was sentenced to thirty days in jail, twenty of which were suspended, and fined $500 plus court costs. His driver's license was suspended for one hundred eighty days, with credit given for his pre-trial suspension. Execution of sentence was stayed pending appeal. Appellant timely appeals and assigns the following errors for our review: . THE TRIAL COURT VIOLATED THE DEFENDANT- APPELLANT'S SIXTH AMENDMENT RIGHT UNDER THE U.S. CONSTITUTION, AND SIMILAR PROVISION UNDER THE OHIO CONSTITUTION, TO PRESENT RELEVANT EXCULPATORY EVIDENCE WHEN IT BARRED THE DEFENSE EXPERT WITNESS FROM TESTIFYING. II. THE TRIAL COURT VIOLATED THE DEFENDANT- APPELLANT'S SIXTH AMENDMENT RIGHT UNDER THE U.S. CONSTITUTION, AND SIMILAR PROVISION UNDER THE OHIO CONSTITUTION, TO PRESENT RELEVANT EXCULPATORY EVIDENCE WHEN IT BARRED THE DEFENDANT FROM TESTIFYING TO THE FACTS AND CIRCUMSTANCES SURROUNDING HIS ALLEGED FAILURE TO SUBMIT TO THE REQUESTED ALCOHOL BREATH TEST. III. THE TRIAL COURT DEPRIVED THE DEFENDANT- APPELLANT OF HIS CONSTITUTIONALLY PROTECTED DUE PROCESS RIGHT TO A FAIR AND IMPARTIAL TRIAL WHEN IT OPENLY SIDED WITH THE PROSECUTION AGAINST THE APPELLANT- DEFENDANT. IV. DEFENDANT-APPELLANT'S CONVICTION FOR DUI IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 2According to appellant's brief, the jury returned a verdict of not guilty on the weaving charge. 6 I. In his first assignment of error, appellant contends that the trial court erred in excluding the testimony of his expert witness, Christopher Giannini.3 Specifically, he argues that Ofc. McKay's criteria for grading the field sobriety tests is suspect and that his defense was seriously impaired when he was precluded from introducing the testimony of Mr. Giannini for the purpose of impeaching Ofc. McKay's testimony. The city, on the other hand, maintains that the effects of alcohol are common knowledge and, thus, this expert's testimony was properly excluded on that basis. The decision to admit or exclude evidence is a matter within the sound discretion of the trial court and will not be reversed by a reviewing court absent an abuse of that discretion. Renfro v. Black (1990), 52 Ohio St.3d 27, 32. Abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Evid.R. 702 governs testimony by experts and provides in part: A witness may testify as an expert if all of the following apply: (A) The witness' testimony *** relates to matters beyond the knowledge or experience possessed by lay persons *** ; 3This court notes that appellant did not attempt to proffer the testimony of this witness as required by Evid.R. 103(A)(2). The substance of this witness's testimony, however, is apparent from the context within which the questions were asked and therefore this error is reviewable by this court. See Evid.R. 103(A)(2); State v. Gilmore (1986), 28 Ohio St.3d 190, 192-193; State v. Carlson (1986), 31 Ohio App.3d 72, 73. 7 (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; (C) The witness' testimony is based on reliable scientific, technical, or other specialized information. *** It appears that Mr. Giannini would have testified that Ofc. McKay's field sobriety test results were unreliable as evidence to convict appellant for driving while under the influence of alcohol. The reliability of several field sobriety tests was discussed by the Supreme Court of Ohio, in State v. Bresson (1990), 51 Ohio St.3d 123. The Bressoncourt held that expert testimony concerning the reliability of one particular field sobriety test, the horizontal gaze nystagmus test, was not required to admit the results of that test into evidence. Instead, test results are admissible upon a showing that the officer possessed the training and ability to administer the test. Nonetheless, in a marginal case, where information regarding the reliability of an officer's administration and grading of field sobriety tests is open to debate, information regarding test reliability may provide reasonable doubt as to whether the accused was under the influence of alcohol and therefore is a proper subject to be addressed by the defense through an expert witness. State v. Browne (June 27, 1997), Lake App. No. 96-L-121, unreported, at 8-9. This is not a marginal case, however. There was testimony by Ofc. McKay that appellant was observed staggering in the parking lot of the Proud Pony prior to his arrest. Upon conversing with 8 appellant, this officer noted a strong odor of alcohol, slurred speech and glassy eyes. Appellant decided against entering his vehicle upon the advice of the officer and led the officer to believe that he would try and find a ride home. After being stopped the second time, appellant commended the officer for doing his job. Once at the police station, appellant admitted having five beers while at the Proud Pony and was observed to be intoxicated by two other officers. Thus, even if we were to decide that Mr. Giannini's testimony would have aided the trier of fact in understanding the subtleties of field sobriety testing, this evidence alone would not have necessarily made appellant's conviction for driving under the influence less likely. Consequently, while it may have been error to exclude the testimony of a witness who would have given insight into the field of field sobriety testing, we find that this exclusion was not prejudicial as sufficient evidence of appellant's intoxicated state is apparent from the record. See State v. Williams (1983), 6 Ohio St.3d 281, 291; see, also, State v. Neff (1957), 104 Ohio App. 289, 291-292 (observations by arresting officer that defendant's eyes were glassy and bloodshot, his speech slurred and that a strong odor of alcohol emanated from defendant were sufficient to support a finding that defendant was under the influence of alcohol). Accordingly, appellant's first assignment of error is not well taken. 9 II. In his second assignment of error, appellant contends that he was precluded from testifying as to the reason why he refused taking a breath alcohol test. Specifically, appellant argues that the jury was prevented from hearing that he wanted to consult with an attorney before taking the test. In South Dakota v. Neville (1983), 459 U.S. 553, the United States Supreme Court held that a refusal to take a chemical test is not violative of a defendant's Fifth Amendment right against self- incrimination nor the Fourteenth Amendment right to due process. As such, a defendant's refusal could have probative value as to whether he was intoxicated at the time. Westerville v. Cunningham (1968), 15 Ohio St.2d 121, paragraph one of the syllabus. Nonetheless, circumstances may exist where the refusal to submit to a chemical test is not based on consciousness of guilt. Maumee v. Antisik(1994), 69 Ohio St.3d 339, 344. A request to consult with an attorney is one such circumstance. Columbus v. Maxey (1988), 39 Ohio App.3d 171, 172. Where the reason for refusing to submit to such a test is a disputed issue of fact, the issue is one for the jury to resolve. Id. Here, appellant argues that the jury was prevented from hearing his reasoning behind refusing the breath alcohol test. A careful review of the proceedings below compels this court to 10 disagree. testified, without objection by the city, as follows: eOn direct examination by question of whether you would take a breath test, what did you say? APPELLANT: I wouldn't take a breath test unless I had an attorney. As can be surmised from the excerpted testimony above, appellant was not prevented from testifying as to the reason behind his refusal. Apparently, appellant is arguing that he was prevented from testifying as to whether he was given an opportunity to consult with an attorney on the basis of this response. This is not the issue, however. Appellant has not asked this court to review whether appellant was denied his right to speak to an attorney. Appellant merely argues that he was not afforded the opportunity to present to the jury the reason behind his refusal, which, as demonstrated, is untrue.4 Consequently, the jury was fully aware of appellant's reason for refusing to submit to the breath test and capable of considering this evidence in reaching its verdict. Accordingly, appellant's second assignment of error is not well-taken. 4Appellant also argues that this case is analogous to Columbus v. Maxey, supra, in that the court should have granted his request for an evidentiary hearing on whether appellant's refusal was made in good faith. Nonetheless, appellant does not ask this court to review the denial of either his motion to suppress or his motion in limine. Consequently, these issues are not presently before this court. 11 III. In his third assignment of error, appellant contends that he was denied a fair trial when the trial court openly sided with the prosecution when instructing the jury. Specifically, he argues that the court's use of the phrases we must prove *** and we now charge *** gave the jury the impression that the court aligned itself with the prosecution. Crim.R. 30 governs instructions to the jury and the type of record necessary to preserve an error for review by this court. Relevant to appellant's assigned error is subsection (A), which provides, in part: On appeal, a party may not assign as error the giving *** [of] any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. In this case, appellant did not object to the trial court's phraseology and, as such, any claimed error is waived on appeal. See State v. Underwood (1983), 3 Ohio St.3d 12, 13. Nonetheless, a criminal defendant's failure to object would be reviewable if the error amounted to plain error under Crim.R. 52(B).5 In order to be reviewable by this court, however, appellant must show that the outcome of the trial would have been different if the claimed error had not occurred. Underwood, supra, at the syllabus. 5This rule provides that [p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. 12 Appellant claims the outcome certainly would have been different as evidenced by the jury's verdict of not guilty on the weaving offense after being given a linguistically correct charge when compared to the verdict of guilty on the linguistically incorrect charge on the driving-under-the-influence offense. We do not agree. A review of the record reveals that the trial court stated, *** we must prove or it must be proven to you ***. The court, recognizing its poor choice of words, corrected itself within the same sentence. Thus, any potential bias shown by the trial court was quickly corrected. Nor can appellant demonstrate that but for the trial court's use of the phrase, [w]e now charge what we mean by under the influence that appellant would not have been convicted for driving while under the influence of alcohol. As discussed in Section I, the evidence against appellant was overwhelming.While we do not condone the trial court's choice of words, it is unlikely that the outcome of the trial would have been different had the trial court not used the term we in this charge. Accordingly, appellant's third assignment of error is not well taken. IV. In his fourth assignment of error, appellant contends that his conviction is against the manifest weight of the evidence. 13 A reviewing court will not reverse a jury verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, syllabus; see, also, State v. Smith (1991), 61 Ohio St.3d 284, 289. In determining whether a trial court's decision is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by a reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App.3d 10, syllabus; State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442 and 64443, unreported. In making this determination, however, an appellate court must defer to the factfinder's conclusions regarding the witnesses' credibility as the factfinder is in a better position to observe the witnesses' demeanor. State v. DeHass (1969), 10 Ohio St. 2d 230. Moreover, the decision to reverse a judgment as against the manifest weight of the evidence is to be exercised with extreme 14 caution and only in the exceptional case where it is evident that the evidence weighs manifestly against conviction. State v. Wilson, supra. After a thorough review of the testimony adduced at trial, we are compelled to find that there was substantial evidence from which the trier of fact could reasonably conclude that appellant was driving while under the influence of alcohol and/or drugs. Even if we were to exclude the field sobriety test results, as appellant suggests, formidable evidence in support of appellant's conviction was presented by the city. Not one, but three, officers observed appellant and concluded that he appeared to be intoxicated. Moreover, Ofc. McKay observed appellant stagger across the parking lot in search of his car. Appellant stated to this officer that he was not in a position to drive and thanked the officer for suggesting that he find someone to take him home. We are mindful that appellant disputes that this conversation ever took place or that he ever saw the officer before the officer stopped him. Nonetheless, we defer to the factfinders' conclusion as to the credibility of the witnesses as they were in the best position to observe the witnesses' demeanor. DeHass, supra. Weighing the evidence and any reasonable inferences compels this court to find that appellant's conviction is not against the manifest weight of the evidence. Accordingly, appellant's fourth assignment of error is not well taken. Judgment affirmed. 15 It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Bedford Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decison will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .